17th December 2020
The office of Attorney-General is at the very crossroads of law and politics.
As a lawyer, the Attorney-General is the government’s chief legal adviser and, by convention, is the head of the Bar of England and Wales.
They superintend the Crown Prosecution Service, and they can (and do) initiate contempt of court proceedings against the media.
A further role is that they can act in proceedings where they represent the public interest and/or the government.
They also can decide to refer cases to the court of appeal where it appears a criminal court has been ‘unduly lenient’ in sentencing.
These are all important – crucial -tasks and so it follows that these roles must be taken seriously.
The Attorney-General is, however, also a politician – usually a member of parliament but sometimes a peer – and one who attends the cabinet.
It is a job therefore where the holder has to wear two hats – or horsehair wigs.
And it is not an easy task even for senior politicians and experienced lawyers.
The current Attorney-General is neither a senior politician nor an experienced lawyer.
This, of course, is not their fault – although some in this position if they were offered the office would not take it.
The current holder of the office, however, is going out of their way to politicise and thereby to discredit the legal side of the office.
This blog has previously set out how the current Attorney-General should have resigned when they unapologetically tweeted in respect of a case of a political ally who was then subject to a live police investigation.
That really was not what the superintendent of the Crown Prosecution Service should be doing.
There is now a further example of how the current Attorney-General is undermining their office.
Here there are three texts that are of interest.
First, here is a Daily Express article from 7th November 2020: Attorney General to appear at Andrew Harper’s killers appeal hearing next week.
In the body of that article, under the byline of a political editor, was the following:
‘A friend of Ms Braverman’s told the Sunday Express:
‘“She was met with strong opposition from civil servants to pursue this case but she held firm and has done the right thing.
‘“She made it clear she wants to be there to underline how important this issue is to the ‘government and how seriously it takes this case.
“If the judges uphold the original sentences then she will have still done the right thing and it will be another example of wet, liberal judges being soft on criminals.”’
As is widely known, ‘friend’ is a code in political journalism for either the politician themselves or someone speaking on their behalf, such as a special adviser.
As far as I am aware, this quote has not been disavowed by the Attorney-General.
Second, here is a speech on sentencing by the Lord Chief Justice made on 9th December 2020.
Here are two paragraphs from this informative and accessible speech (asterisk and emphasis added):
‘Were the mythical alien to arrive on earth and, I grant you yet more improbably, take an interest in sentencing in England and Wales by reading the newspapers and dipping into the more noisy parts of on-line media, it would soon gain the impression that sentencing had got softer in recent years. It would read about “wet, liberal judges being soft on criminals” (*) and wonder why criminals convicted of serious offences were getting more lenient sentences than they used to. Then our alien visitor might seek some other sources of information, and if possessed of a brow it might become furrowed.
‘There is a difficulty with this narrative. It is a myth.’
The Lord Chief Justice then proceeds in his speech to demonstrate how sentencing has certainly not got softer.
But who was the judge quoting about “wet, liberal judges being soft on criminals” ?
The quotation is footnoted (where I have inserted the asterisk), and the footnote reads:
‘Sunday Express 8 November 2020, quoting a source.’
The Lord Chief Justice is here publicly dismissing – perhaps even deriding – the ‘friend’ of the Attorney-General who in turn is describing the Attorney-General’s motivation for intervening in a criminal sentencing case.
For the head of the judiciary to be doing this openly to the government’s chief legal adviser and holder of the ancient office of Attorney-General is an extraordinary public intervention.
And now we turn to the Court of Appeal judgment in respect of the sentencing of those who killed the police constable Andrew Harper.
The facts of the case are horrific.
Three were convicted of manslaughter, though a jury acquitted them of murder.
And so the three were sentences in accordance with the guidelines for manslaughter.
The Attorney-General, as the Daily Express article describes, exercised one of their powers and referred the sentences to the court of appeal on the basis of the sentences being ‘unduly lenient’.
The Attorney-General then – oddly for a barrister with no substantial criminal law background – appeared personally at the hearing.
There are three paragraphs of the judgment of interest in respect of the contribution and role of the Attorney-General.
‘In her initial remarks, the Attorney General rehearsed some of the facts and said that the sentences have caused widespread public concern. She outlined four points, about which Mr Little QC then made submissions.’
Here the court are not even deigning to describe the Attorney-General’s contribution as submissions – a ‘submission’ is something one submits to the court for consideration – but merely as remarks.
(The Supreme Court adopted a similar remarks/submission distinction when a former Attorney-General appeared (out of his depth) at the first Miller case: ‘Following opening remarks made by HM Attorney General, Mr Eadie QC in his submissions on behalf of the Secretary of State, did not challenge much if any of the factual basis of these assertions…’ – paragraph 57 here.)
We now turn to the submission that were made, if not personally by the Attorney-General, but by another barrister on their behalf.
Paragraph 83 (emphasis added):
As to the length of the custodial terms, we note a striking feature of the submissions. When applications are made by the Attorney General for leave to refer to this court sentences which are said to be unduly lenient, it is frequently on the basis that the judge fell into error by failing to follow a relevant guideline. In this case, however, the argument advanced by the Attorney is that the sentence of Long, and therefore the sentences on Bowers and Cole, were unduly lenient because the judge erred in failing to depart from the relevant guideline.
Just as political journalists have their codes, so too do judges.
And to describe as position as ‘striking’ is to say that it is barking – and the rest of the paragraph explains why.
In essence: unduly lenient sentences are those which depart from the guidelines and not those made in accordance with them.
This is then followed by paragraph 84 (again emphasis added):
‘That is, to say the least, an unusual submission. It involves the proposition that in the circumstances of this case, a sentence within the guideline offence range was not within the range properly open to the judge, who was instead required to pass a sentence outside that range. We think it regrettable that, in advancing that submission, the structure and ambit of the guideline were not addressed. Nor was any sufficient explanation given why it is contended that the judge was not merely entitled to depart from the guideline but positively required to do so.’
Here ‘unusual’ means, in effect, beyond barking – and again the rest of the paragraph sets out why.
These are obvious points and would have been plain to government lawyers.
But as ‘friend’ of the Attorney General said, ‘[s]he was met with strong opposition from civil servants to pursue this case’.
And paragraphs 83 and 84 set out why.
Taking these three texts together we can see that the judiciary are alert to the motivations of the Attorney-General and are resistant to the attempts to politicise the office, and that the judiciary will be unafraid to reject ‘striking’ and ‘unusual’ submissions made on behalf of the Attorney-General.
The judges are not stupid or unworldly – they know exactly the import of coded criticisms in public speeches and judgments.
The Attorney-General may be sending signals, but so are the judges.
But this Attorney-General will not care.
The political job is done – and one can imagine the claps and cheers of the ‘friend’ quoted in the Daily Express article.
She took on the ‘wet, liberal judges being soft on criminals’.
But this political job has been done at a cost.
Although a politician, the Attorney-General is entrusted with highly important decisions in respect of not only referring ‘unduly lenient’ sentences, but also in respect of many other legal matters, from contempt of court to the operation of the crown prosecution service.
But the conduct of the current Attorney-General is such that their credibility as a decision-maker capable of making such decisions on the appropriate basis is open to doubt.
This quick win for a political ambitious Attorney General is at the cost of the standing of their office.
The Attorney-General is weaponising her legal responsibilities for political purposes.
This is a remarkable, striking and unusual predicament.
And given that the Attorney-General is not only doing this recklessly but with apparent enthusiasm means that there is no reason for anyone watching it happen in real time to be unduly lenient.
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